On 1 April 1999, 79-year-old Antony Sawoniuk was convicted at the Old Bailey in London of murdering two Jews in September 1942 in Domachevo, Belorussia, a town under German occupation, in "violation of the laws and customs of war". He received a sentence of life imprisonment.
Despite the leading role played by Great Britain at the International Military Tribunal (IMT) in Nuremberg, and in the prosecution of Nazi war criminals in occupied Germany between 1945 and 1950 in its own Military Courts and under Control Council Order Number 10, Sawoniuk was the first person to be tried in England for war crimes committed during World War II. He will probably be the last.
There are a host of legal, historical and political reasons for the absence of substantive prosecutions for international crimes in the United Kingdom for 50 years - but it really comes to this: Until the late 1980s it was not thought that any war criminals lived in the UK. The few thousand German prisoners of war in the UK at the end of the War were rapidly repatriated. It was confidently assumed that the 'displaced persons' and other migrants from the Eastern Front (where many of the worst atrocities of the War occurred) had been adequately screened before their arrival in the UK to help with the post-War reconstruction effort, and any potential war criminals identified and arrested.
Three factors influenced the UK Government to re-examine the question of war crimes prosecutions in the late 1980s. Firstly, the thawing in relations between the former Soviet Union and the West led to greater information sharing between NGOs, police and foreign ministries about suspected war criminals who had escaped justice after 1945 - a process that had been almost completely absent in the immediate aftermath of the War. Secondly, the relentless investigations of pressure groups such as the Simon Wiesenthal Center in Los Angeles disclosed the presence of suspected war criminals in the UK population. Finally, although not explicitly referred to in contemporary debates, the rise of ethnic violence and gross human rights violations in the former Yugoslavia from 1991 onwards caused many law-makers in Europe to look again at their own record of failure in prosecuting war criminals after the terrible conflict of 1939-1945.
The UK Government, and in particular the Foreign Secretary, can enter into treaty relations that confer rights and create binding obligations on the executive, without the prior Page 206 consent of Parliament. However, such rights and obligations have no effect in domestic law "unless domestic law is in force to give effect to them".1 Parliament can incorporate such rights and obligations into domestic law through legislation. This constitutional arrangement is known as 'dualism'. Under the dualist approach treaty provisions that have been incorporated into domestic law "have only the status of domestic law"2 and can be amended or repealed by subsequent legislation, regardless of the impact on the UK's international obligations to other States Parties to the relevant treaty.
Treaties are incorporated into UK law in one of three ways: (1) where the whole or part a treaty is annexed to the relevant Act as a Schedule and expressed "to have the force of law of the United Kingdom";3 (2) where Parliament confers a power on the executive to conclude future treaties of a particular type; and (3) where an Act of Parliament authorises the Crown to create secondary or delegated legislation in the form of Orders in Council making the treaties part of domestic law.4
There is nothing in English constitutional law that per se prevents English courts from recognising customary international law norms as part of the English common law. At the same time, whether or not a rule of customary international law forms part of English law is governed by the principle of certainty. In Jones & Others v. Gloucestershire Crown Prosecution Service, 5 the Court of Appeal was called upon to determine the legality of the invasion of Iraq by UK and US forces in March 2003. In considering whether the international crime of aggression was a crime in English law, the Court noted that:
"The mere fact that an act can clearly be established as proscribed by international law and is described as 'a crime' does not necessarily of itself determine its character in domestic law unless its characteristics are such that it can be translated into domestic law in a way which would entitle domestic courts to impose punishment."
The Court of Appeal found that there was insufficient consensus in the international community as to the constituent elements of the crime of aggression for it to meet the certainty test. By contrast, in Pinochet No. 36 their Lordships appeared to accept the possibility that torture existed as a crime in English law before it was defined in the Criminal Law Act .7Page 207
As a matter of practice, experience has shown that it is unlikely that prosecutions will be brought to a successful conclusion in UK courts unless there is relevant domestic legislation in existence implementing customary international law norms or international conventions to which the UK is a party.
Two pieces of legislation were passed in the UK prior to the International Criminal Court Act 2001 that allow for the prosecution of two of the three core international crimes in domestic courts - the Geneva Conventions Act of 1957 and the Genocide Act of 1969. No one has been prosecuted in the UK for grave breaches of the Geneva Conventions or genocide, and both Acts lie on the statute books unused. Other non-core international crimes, such as hostage taking and torture, are also the subject of domestic legislation, and have been used in a small number of prosecutions in the UK courts.
Therefore the history of domestic prosecutions in the UK of international crimes prior to the implementation of the International Criminal Court Statute can be understood through the prism of the Sawoniuk case alone.
Although Great Britain was a party to the Hague Conventions of 1907 and incorporated many of its provisions into the 1914 British Manual of Military Law, the long road that led to Sawoniuk's conviction began a year after his dreadful crimes were committed, in Moscow on 30 October 1943.
On that day, Churchill, Roosevelt and Stalin signed the Moscow Declaration. Two important features of that treaty determined what would follow: first, upon Germany's surrender, those responsible for war crimes were to be sent back to the place where the crimes were committed to be judged and punished; second, the major war criminals whose offences "had no particular location" would be punished by joint agreement of the Allies.8 The agreement reached after the Moscow Declaration was that the major war criminals should be tried at the IMT in Nuremberg.
Although there was tremendous political will to ensure that war criminals did not escape justice both during and in the immediate aftermath of the War, it soon dissipated as the huge scale of the reconstruction effort in Europe increasingly took precedence over thoughts of 'retribution', and the overwhelming practical difficulties involved in apprehending and trying suspects became apparent.
Eight million men under arms were captured and imprisoned by the Allies in 1945. Many combatants in the German armed forces were not German nationals, but from the Baltic States in the East, much of which was occupied by the Soviets. At Yalta, Churchill and Roosevelt had agreed to surrender all Soviet citizens under the control of Commonwealth forces in Europe and facilitate their return to the USSR. Between May and September 1945, some two million Soviet 'citizens' had been repatriated. The repatriations continued until 1949. It is not known how many Baits who had fought with the Germans against the Russians were returned. Britain was also under an obligation to return alleged war Page 208 criminals...